Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 174218 in Suit No.385799
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1742 OF 2018
IN
SUIT NO. 3857 OF 1999
(CNR NO.MHCC010057232018)
Shri. Prahladsingh Ramkhilavansingh ….Plaintiff
Versus
Shri. Sudhir J Bhalekar and Another ... Defendants
Appearance:
Smt. Asha Bambani, Advocate for plaintiff.
Smt. Kavita Shah, Advocate for Defendant No.2.
CORUM : SMT. S.S. NAGUR,
AD HOC JUDGE &
ASST. SESSIONS JUDGE,
(C.R.NO.13)
DATE : 26/02/2019
ORAL ORDER
1) Notice of Motion is filed to recall witness of
defendant DW1 Shri. Sharma.
2) The Notice of Motion is supported by affidavit of
Shri. Savitri S. Singh stating that it was noticed that inadvertently
the defendant's witness remained to be cross examined in respect
of same pleadings made by both the parties. Therefore, the cross
examination of DW1 is necessary and material for proper and
complete adjudication of issues before court.
3) The plaintiff further stated that on 15/02/18 the
matter was heard by Hon'ble Court and application by precipe
...1/
-- 1 of 6 --
NM No. 174218 in Suit No.385799
2
was mentioned to recall the defendant's witness i.e. DW1 for
further cross examination. The Court directed to file proper
application and the suit was adjourned on 09/03/18. On
9/03/18 draft Notice of Motion with unaffirmed supported
affidavit tendered. To that advocate for defendant objected. On
09/04/18 leave to register of Notice of Motion was not granted
on technical ground that affidavit is unaffirmed. Thereafter in the
afternoon session when she was personally present in the court
and prayed to affirm affidavit in support of Notice of Motion,
leave to register was granted. The defendant has closed the
evidence immediately after the cross examination of witness is
closed the evidence. Though the plaintiff filed precipe that was
not allowed and due to technical reasons it took some time to file
affirmed affidavit alongwith the Notice of Motion. Hence, prayed
to allow the Notice of Motion.
4) The defendant No.2 filed reply by way of affidavit of
Shri. Girijapati Bhagwanrai Sharma and denied all the allegatinos
made in the Notice of Motion to be false. The defendant stated
that the Notice of Motion is not tenable. It is after thought and to
fill lacuna in the evidence. The defendant has examined witness
No.2 Shri. Mahesh R. Dewoolkar of the Prashal Cooperative
Housing Society Ltd who has been cross examined by the plaintiff
and thereafter defendant has closed the evidence. The witness
cannot be recalled to fill up lacuna. It is abuse of process of law.
The defendant is 86 years old who has been called on two
occasions for the cross examination. The plaintiff has been
...2/
-- 2 of 6 --
NM No. 174218 in Suit No.385799
3
granted sufficient opportunity to cross examine the witness.
Hence, prayed to dismiss the Notice of Motion.
5) Heard advocate Smt. Asha Bambani for plaintiff and
advocate Smt. Kavita Shah for defendant No.2. Perused contents
of the Notice of Motion supported by affidavit and reply affidavit
of defendant No.2.
6) Advocate Smt. Bambani for plaintiff argued that the
plaintiff immediately took up precipe before the cross
examination of DW2 to cross examine DW1 as there were certain
questions to be put to the witness which will properly adjudicated
to the proceeding. There is no delay on the part of the plaintiff to
file application for recalling the witness. The court was vacant.
Therefore, plaintiff could not file registered Notice of Motion. No
prejudice will cause to the other side. Therefore prayed to allow
the Notice of Motion.
7) On the other hand, advocate Smt. Kavita Shah
argued that the Notice of Motion is not maintainable. There is no
provision to recall the witness. Once the cross examination is
completed as per Evidence Act. It is for reexamination of the
witness in case there is ambiguity in the evidence. The plaintiff
cannot be allowed to fill up lacuna by recalling the witness. The
inherent power u/s. 151 of Code of Civil Procedure can be used
only on two occasions i.e. in the interest of justice and to proving
abuse of process of law. No new fact has been brought on record
to allow the plaintiff to cross examine the witness DW1. Hence,
...3/
-- 3 of 6 --
NM No. 174218 in Suit No.385799
4
prayed to dismiss the Notice of Motion.
8) The defendant has adduced the evidence of DW1
Shri. G. Sharma (Exh.7) by filing the evidence affidavit on
19/12/17. Thereafter, the suit was adjourned on 17/01/18
wherein the documents were exhibited and cross examination
was partly recorded. On 07/02/18 the cross examination of this
witness was completed.
9) Thereafter, the roznama dated 15/02/18 shows that
the advocate for defendant No.2 filed witness summons and the
witness summons were issued. The plaintiff were absent on that
day. None of the representative of the plaintiff was present as per
the roznama. Initially on 09/03/18 non for plaintiff was present.
The chief examination of DW2 Shri. M. Dewoolkar was
completed vide Exh.31.
10) Thereafter, advocate for plaintiff filed draft Notice of
Motion. Leave was granted. The Notice of Motion was put for
consideration. The cross examination of DW2 was completed and
the defendant filed closing pursis at Exh.32.
11) On perusal of the pleadings in the Notice of Motion
the reasons shown for recalling the witness as that inadvertently
certain questions remained to be asked to the witness which is
required as per the pleadings of both the parties to adjudicate the
dispute properly. The plaintiff desires that the court should use
its inherent power of recalling the witness. However, considering
the above facts on record, the plaintiff was given sufficient
...4/
-- 4 of 6 --
NM No. 174218 in Suit No.385799
5
opportunity to cross examine the witness on the form of affidavit.
The plaintiff had the facts which have been stated in the evidence
affidavit which is as per the written statement of the parties. It is
not so that there was a new fact brought on record and same
remained to be cross examined. The issues were already framed
and the parties had knowledge that what issues they have. The
Notice of Motion is not tenable. The plaintiff cannot be allowed
to fill up lacuna.
12) The plaintiff took ten months to file registered
Notice of Motion in court. The court was vacant during the
month of August 2018 to 04/12/18. The reasons of advocate for
plaintiff that the court is vacant is not a proper ground as always
charge is kept. Therefore, the cost is to be imposed to the plaintiff
for filing the registered Notice of Motion after ten months of its
registration. Hence, pass following order:
ORDER
1. The Notice of Motion is rejected.
2. Plaintiff to pay cost of Rs.500/ to be
deposited to District Legal Service Authority.
(S.S. Nagur)
Date : 26/02/2019 AdHoc Judge &
Asst. Sessions Judge,
City Civil Court,
Greater Mumbai.
Dictated on : 26/02/2019
Transcribed on : 12/03/2019
Signed on : 12/03/2019
...5/
-- 5 of 6 --
NM No. 174218 in Suit No.385799
6
“CERTIFIED TO BE TRUE AND CORRECT, COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
DATE & TIME OF UPLOADING : NAME OF STENOGRAPHER
12.03.2019 & 5.06 p.m. : Mrs. S.A. Shekade (LG)
Name of the Judge (with Court no.) : HHJ Smt. S.S. Nagur
(CR no. 13)
Date of pronouncement of Judgment/ : 26.02.2019
Order
Judgment/Order signed by the P.O. on : 12.03.2019
Judgment/Order uploaded on : 12.03.2019
...6/
-- 6 of 6 --